Case Number: BC648025 Hearing Date: June 05, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On January 25, 2017, Plaintiffs Jennifer Nuckles, Bridget Schwartzott, Heather Himes, and Patricia Dragone (collectively, “Plaintiffs”) filed this action against Defendants Torrance Memorial Medical Center, Viktor E. Eysselein, M.D., James Sattler, M.D., and Sidney Mercado, M.D. for medical malpractice arising out of the January 29, 2016 death of Jane Helen Cowan (“Decedent”). Dr. Mercado moves for summary judgment. Plaintiffs filed a notice of non-opposition.

II. FACTUAL BACKGROUND

Between August 29, 2014 and September 4, 2014, Decedent was hospitalized for pancreatitis, secondary to dynamic duodenal obstruction and duodenal polyp at Hemet Valley Medical Center. (Undisputed Material Fact “UMF” No. 2.) On August 3, 2015, Decedent was admitted Torrance Memorial Medical Center (“TMMC”) with acute pancreatitis. (UMF No. 3.) On December 18, 2015, Decedent underwent an endoscopic retrograde cholangio-pancreatography (ERCP) by Dr. Eysselein. (UMF No. 11.) After the procedure, Decedent was intubated and sent to the ICU. Dr. Mercado assumed care of Decedent and planned to keep Decedent intubated pending further evaluation of the pancreatic duct. (UMF Nos. 15, 16.) Dr. Mercado ordered octreotide, imipenem, protonix, a CT scan of the abdomen and pelvis, sequential compression devises for venous thrombosis prevention, a peripherally inserted central venous catheter, and x-rays of the chest. (UMF No. 17.) Dr. Mercado called Dr. Mandorin for surgical consultation due to pancreatic duct perforation. (UMF No. 18.)

Over the course of the next month and a half, Dr. Mercado or one of the hospitalists saw Decedent daily for internal medicine care. (UMF No. 19.) Dr. Mercado saw Decedent on December 18 through 23, 2015, December 31, 2015 through January 6, 2016, January 11 through 13, 2016, and January 16 through 22, 2016. (UMF No. 20.) Decedent’s hospitalization was difficult and complicated due to: (1) retroperitoneal air, pneumoperitoneum, subcutaneous emphysema and small pneumothoraces; (2) stress-induced myocardial infarction; (3) right pleural effusion requiring chest tube drainage; (4) retroperitoneal fluid collection that became infected with candida, requiring multiple percutaneous drains; (5) gastroduodenal artery pseudoaneurysm that required embolization; (6) subcapsular hematoma related to one of the drainage procedures; (7) multiple code blue episodes and evaluations by the hospital rapid response team; (8) biliary obstruction requiring both percutaneous drain placement and endoscopic biliary stenting; and (9) a persistent slow bile leak from the biliary tree and duodenum into the retroperitoneum. (UMF Nos. 21-29.)

On January 28, 2016, Decedent developed a fever and became tachypneic and tachycardic. (UMF No. 30.) The next day, Decedent was in severe respiratory distress, went into cardiac arrest four times, and was resuscitated each time. (UMF No. 31.) Thereafter, Plaintiffs decided that no further resuscitative efforts should be made. (UMF No. 32.) Decedent was placed on a morphine drip and was pronounced dead at 10:37 a.m. (UMF No. 33.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.3d 977, 984-985.)

Dr. Mercado submits the declaration of Russell C. Klein, M.D. (“Dr. Klein”), board certified in internal medicine. (Declaration of Russell C. Klein, M.D., ¶ 2.) Dr. Klein reviewed Decedent’s medical records. (Klein Decl., ¶ 4.) Based on his review of the records, education, training, and experience, Dr. Klein opines that Dr. Mercado complied with the standard of care at all times in his examination, treatment, and care of the Decedent. (Klein Decl., ¶ 12.) When Dr. Mercado first saw Decedent, he properly evaluated the situation at hand, including Decedent’s medical history and medical records. He kept Decedent intubated and ordered octreotide, imipenem, protonix, a CT scan, sequential compression devises, a catheter, and x-rays of the chest, all of which were appropriate under the circumstances. It was also proper to seek surgical consultation with Dr. Mandorin. (Klein Decl., ¶ 12.) Dr. Klein opines Decedent received appropriate treatment during her entire stay at TMMC, that Dr. Mercado appropriately consulted with the specialists in charge of Decedent’s care, including cardiology, gastroenterology, general surgery, infectious disease, interventional radiology, and psychiatry. (Klein Decl., ¶ 13.) Dr. Klein opines that Dr. Mercado appropriately consulted with the cardiologist after Decedent suffered a stress-induced myocardial infarction. Dr. Mercado appropriately consulted with specialists and did not neglect Decedent in any manner. (Klein Decl., ¶¶ 14, 15.) Further, Dr. Mercado’s care did not cause Decedent’s death. (Klein Decl., ¶ 16.)

Dr. Mercado met his initial burden of showing he did not breach the standard of care or cause or contribute to Decedent’s death. The burden shifts to Plaintiffs to show, by contrary expert opinion, that a triable issue of fact exists. However, Plaintiffs filed a notice of non-opposition stating they do not oppose Dr. Mercado’s motion for summary judgment.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.